State v. Washington

612 June 19, 2014 No. 43

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MICHAEL SPENCER WASHINGTON, JR.,

Defendant-Appellant.

(CC CR0701950; SC S058490)

En Banc

On automatic and direct review of the judgment of con-

viction and sentence of death imposed by the Clackamas

County Circuit Court.

Thomas Rastetter, Judge.

Argued and submitted June 4, 2013.

Bronson D. James, JDL Attorneys, LLP, Portland, argued

the cause and filed the briefs for defendant-appellant.

Timothy A. Sylwester, Assistant Attorney General,

Salem, argued the cause for plaintiff-respondent. With him

on the brief were Ellen F. Rosenblum, Attorney General,

Anna M. Joyce, Solicitor General, Christina M. Hutchines

and Jeremy C. Rice, Assistant Attorneys General.

LANDAU, J.

The judgment of conviction and sentence of death are

affirmed.

On automatic and direct review of the judgment of conviction and sentence

of death, defendant raised 22 assignments of error, including challenges to the

trial court’s order that he wear a stun device during trial, its empaneling of an

anonymous jury, and its implementation of additional security measures during

the penalty phase of his trial. Defendant also challenged the trial court’s denial

of his motions for judgment of acquittal, its admission of certain testimony about

the victim and his family, and its refusal to give his requested jury instruction

regarding mercy. Finally, he challenged the lawfulness of Oregon’s death penalty

sentencing scheme in various respects. Held: Evidence in the record supports the

trial court’s order that defendant wear a stun device during his trial, its empan-

eling of an anonymous jury, and its implementation of additional security mea-

sures during the penalty phase of defendant’s trial. The trial court did not err

in denying defendant’s motions for judgment of acquittal, because the testimony

Cite as 355 Or 612 (2014) 613

of defendant’s accomplice was sufficiently corroborated by other evidence. The

trial court also did not err in admitting testimony of the victim’s uncle about

the victim and his family. It did not err in refusing to give defendant’s requested

jury instruction on mercy because the instruction was not a correct statement of

the law. Finally, the Supreme Court rejected each of defendant’s challenges to

Oregon’s death penalty sentencing scheme.

The judgment of conviction and sentence of death are affirmed.

614 State v. Washington

LANDAU, J.

This case is before the court on automatic and

direct review of defendant’s judgment of conviction and sen-

tence of death for aggravated murder. ORS 138.012(1). On

review, defendant challenges 22 rulings the trial court made

during the guilt and penalty phases of his trial. He asks

this court to reverse his convictions for aggravated murder

and felon in possession of a firearm and remand for a new

trial or, alternatively, to vacate his sentence of death and

remand for resentencing. We affirm both the conviction and

the sentence.

I. BACKGROUND

We begin with an overview of relevant facts and

describe additional facts in our discussion of defendant’s

assignments of error. Because the jury found defendant

guilty, we view the evidence presented at trial in the light

most favorable to the state. State v. Bowen, 340 Or 487, 489,

135 P3d 272 (2006), cert den, 549 US 1214 (2007).

In 1991, defendant began a relationship with Stafford.

They had two children together. At various times over the

years, defendant and Stafford lived apart from each other,

and, during those times, each dated other people. Defendant,

however, did not approve of Stafford dating others.

In 2004, defendant and Stafford were living apart,

and the children lived with Stafford. In the meantime,

Stafford met Mohamed Jabbie, the victim in this case, and

the two began seeing each other romantically.

In July of that year, defendant learned of Stafford’s

relationship with Jabbie. Early in the morning of July 4,

while Stafford and Jabbie were in Stafford’s home, defen-

dant tried to call Stafford, but she refused to answer the

telephone. Moments later, the bedroom window shattered.

Stafford jumped out of the bedroom window and ran to a

neighbor’s house. She returned to her house when the police

arrived and found that two doors had been kicked off of

their hinges. Jabbie was not there. Stafford found Jabbie at

a hospital emergency room where he was being treated for

Cite as 355 Or 612 (2014) 615

various injuries. Following the July 4 incident, Stafford con-

tinued to see Jabbie.

A few weeks later, Stafford and defendant spoke by

phone. Stafford accused defendant of having broken into her

home and told him that he needed to pay for the damage “or

else he was going to jail.” Defendant admitted to Stafford

that he had broken into her apartment and that he had

assaulted Jabbie. But he replied that he was not going to

jail, “[n]ot without a witness.” Stafford immediately called

Jabbie to warn him that his life was in danger because he

had been a witness to the July 4 incident. Defendant later

met with Stafford and asked her to “help him take Jabbie

out.” Stafford refused, and defendant told her that he would

“do it himself.”

A grand jury convened to investigate the July 4 inci-

dent. The grand jury subpoenaed Stafford and Jabbie to tes-

tify about the incident. Defendant knew that Stafford had

been subpoenaed to testify. He went to her house and tried

to convince her to lie to the grand jury, threatening to kill

her and to take her children if she did not. He also asked

her to show him where Jabbie lived. Fearing what defendant

might do if she refused, Stafford showed him where Jabbie

lived, an apartment located near Clackamas Town Center

in Portland.

On September 23, Stafford testified to the grand

jury. Later that evening, she spoke with defendant by tele-

phone. Defendant told Stafford that he wanted her to go to

Jabbie’s apartment. He told her to meet him at Clackamas

Town Center.

Stafford arrived at the shopping center and called

defendant’s cell phone from a public phone booth, but received

no answer. When defendant arrived a few minutes later, he

gave Stafford one of his two cell phones. He told her to go to

Jabbie’s apartment and then call him as she was leaving. He

told her not to use the cell phone to call Jabbie, however.

Stafford went to Jabbie’s apartment, but he was

not at home. She returned to Clackamas Town Center and

called Jabbie from the same public telephone she had used

to call defendant. Jabbie answered and agreed to meet with

616 State v. Washington

her. Stafford told defendant that Jabbie was at home and

that she was going to meet him.

Stafford drove to Jabbie’s apartment and met him

in the parking lot. The two then went upstairs to the apart-

ment. Stafford was nervous because she “knew what was

coming.” While she was in the apartment talking to Jabbie,

the cell phone that she had in her possession, which was on

silent mode, showed several calls from defendant, which she

did not answer.

After about 15 minutes, Stafford left Jabbie’s apart-

ment and placed a call to defendant as defendant had

instructed her. When she opened the door to the apart-

ment, however, defendant was already standing outside the

door. He passed by her and went into the apartment. On

her way down the stairs, Stafford greeted a woman. As she

approached her car in the parking lot, Stafford “heard sev-

eral gunshots back to back.”

In the meantime, at about 10:30 that night, two of

Jabbie’s neighbors, Grooms and Alcantara, had stepped out-

side their apartment to smoke some cigarettes. They heard

an argument in Jabbie’s apartment. They then observed a

woman whom they later identified as Stafford come out of

Jabbie’s apartment, go down the stairs, and walk away. A

minute later, they heard several gunshots and saw flashes

through the window of Jabbie’s apartment. Shortly after the

shots, they saw a black male generally matching defendant’s

age, height, and weight leave Jabbie’s apartment, go down

a set of stairs at the back of the apartment building, and

briskly walk away.

There ensued several phone calls between Stafford

and defendant. The two met later that night, and Stafford

returned defendant’s cell phone to him.

A few days later, Stafford asked defendant where he

had shot Jabbie. Defendant replied that he had shot him in

the chest. Defendant also told Stafford that his cousin had

disassembled and disposed of the gun.

On September 28, police discovered Jabbie’s body,

shot seven times in the chest. When the discovery was

Cite as 355 Or 612 (2014) 617

reported on television, defendant called Stafford and told

her to watch the news, where she saw a picture of Jabbie.

Police investigated Jabbie’s murder. Among other

things, police obtained telephone records for defendant’s cell

phone for the day of the murder. Those records showed that,

on that day, several telephone calls were made to defen-

dant’s cell phone, including two from a payphone located

at Clackamas Town Center and several others between

defendants’ two cell phones placed between 10:00 p.m. and

10:30 p.m. using cell towers located within two blocks of

Clackamas Town Center.

On September 30, 2004, police stopped Stafford in

her car and asked about Jabbie’s death. She admitted that

she had been at Jabbie’s apartment and at Clackamas Town

Center on the night of September 24. She denied having seen

defendant after July 4 and denied having any involvement

in, or knowledge of, Jabbie’s murder. Meanwhile, defendant

and Stafford continued their relationship for the next three

years.

Police arrested defendant and Stafford for Jabbie’s

murder in 2007. When detectives first interviewed Stafford,

she lied about being involved with defendant and being

involved in Jabbie’s murder. She later agreed to testify

against defendant in exchange for dismissal of the aggra-

vated murder charge against her.

Defendant was charged with two counts of aggra-

vated murder, ORS 163.095, one count of murder, ORS

163.115, and three counts of felon in possession of a fire-

arm, ORS 166.270. He was tried to a jury on the aggravated

murder and murder counts and to the court on the felon-in-

possession counts. He was found guilty on all counts. In a

further proceeding under ORS 163.150, the jury answered

the applicable penalty-phase questions in the affirmative.

ORS 163.150(1)(b)(A), (B), (D). The trial court merged the

murder and aggravated murder convictions into one convic-

tion for aggravated murder, merged the three convictions

for felon in possession into one conviction for that crime,

entered a judgment of conviction, and sentenced defendant

to death. This automatic and direct review followed.

618 State v. Washington

II. ANALYSIS

As we have noted, on review, defendant advances

a total of 22 assignments of error concerning rulings of

the trial court during both the guilt and penalty phases

of the trial. We address each of those assignments in turn,

detailing additional facts relevant to those assignments as

necessary.

A.  Motions for Judgment of Acquittal (Assignments 1-5)

At trial, defendant moved for a judgment of acquit-

tal as to all six counts. He argued that the state’s case failed

for lack of sufficient evidence. Specifically, he argued that

the state’s case relied almost entirely on the testimony

of Stafford, and, because Stafford was an accomplice in

Jabbie’s murder, that evidence was insufficient. According

to defendant, ORS 136.440 provides that the testimony of

an accomplice must be corroborated by other evidence. In

this case, he argued, the state failed to introduce any such

corroborating evidence other than cell phone records. In

defendant’s view, that evidence was inadequate to provide

the required corroboration, because the state failed to estab-

lish that defendant possessed either of the cell phones at the

time that the calls were made on the date of the murder. The

state responded that, while the statute does require corrob-

orating evidence, there is in this case “evidence in droves”

connecting defendant to Jabbie’s murder. The trial court

denied defendant’s motions without elaboration.

On appeal, defendant now assigns error to the trial

court’s denial of his motion for a judgment of acquittal as to

the first five charges against him.1 Specifically, defendant

argues, as he did below, that the state’s case relied almost

entirely on the testimony of his accomplice, Stafford, and

that there was insufficient evidence to corroborate her tes-

timony, as required under ORS 136.440. Defendant begins

by asserting that the statute requires a reviewing court to

eliminate any reference to the testimony of the accomplice

1

As we have noted, the indictment included six counts. Defendant’s brief on

appeal assigns error to the denial of his motion for judgment of acquittal as to

only the first five. Given our disposition of the assignments of error that he does

advance, however, the failure to assign error to the denial of a motion for a judg-

ment of acquittal as to the final charge does not matter.

Cite as 355 Or 612 (2014) 619

and then determine whether the remaining evidence suf-

fices to connect him to the offense. Moreover, he argues, the

remaining evidence “cannot be equivocal”; rather, it must be

certain and “inconsistent with innocence.” In that regard,

defendant argues that evidence that establishes mere asso-

ciation with the accomplice or that establishes that defen-

dant was only in the general vicinity of the offense is insuf-

ficient to corroborate the testimony of an accomplice. With

that view of the law in mind, defendant then argues that

the evidence other than Stafford’s testimony was “virtually

non-existent,” consisting of cell phone data that established

“mere association and location.”

The state responds that defendant is incorrect in

asserting that the court must completely disregard Stafford’s

testimony and determine whether independent evidence

establishes defendant’s guilt. What the statute requires, the

state argues, is other evidence that “tends to connect” defen-

dant with the commission of the offense. In that regard,

the state argues that there is ample evidence that connects

defendant with Jabbie’s murder, including evidence that

defendant had previously broken into Jabbie’s apartment and

assaulted Jabbie; that Jabbie was scheduled to be a witness

in the case against him arising out of that incident; that wit-

nesses saw Stafford leave Jabbie’s apartment shortly before

the shooting, followed by a man generally matching defen-

dant’s description after the shooting; and evidence showing

the use of defendant’s cell phones at the time of the murder,

which precisely corroborates Stafford’s testimony about her

movements and defendant’s movements before, during, and

after the shooting.

ORS 136.440 provides:

“(1)  A conviction cannot be had upon the testimony of

an accomplice unless it is corroborated by other evidence

that tends to connect the defendant with the commission of

the offense. The corroboration is not sufficient if it merely

shows the commission of the offense or the circumstances

of the commission.

“(2)  As used in this section, an ‘accomplice’ means a

witness in a criminal action who, according to the evidence

adduced in the action, is criminally liable for the conduct of

the defendant under ORS 161.155 and 161.165 * * *.”

620 State v. Washington

In this case, the parties do not dispute that Stafford was

an “accomplice” within the meaning of subsection (2). Her

testimony, therefore, is insufficient to support a conviction

unless it was “corroborated by other evidence that tends to

connect the defendant with the commission of the offense,”

as required in subsection (1).

At the outset, we reject defendant’s contention that

ORS 136.440 requires “unequivocal” evidence that is “incon-

sistent with innocence” and establishes, independently of the

testimony of the accomplice, defendant’s guilt. This court

has long held that

“[t]he corroboration need not be of itself adequate to sup-

port a conviction *  * ‘Any corroborative evidence legiti-

*

mately tending to connect a defendant with the commis-

sion of the crime may be sufficient to warrant a conviction,

although standing by itself it would be only slight proof of

defendant’s guilt and entitled to but little consideration,

and even though it is not wholly inconsistent with the inno-

cence of the defendant.[’]”

State v. Reynolds, 160 Or 445, 459, 86 P2d 413 (1939).

Consistently with those principles, the court more recently

summarized the requirements of ORS 136.440 as follows:

“By its terms, ORS 136.440(1) requires only that the

corroborating evidence tend to connect the defendant with

the commission of the offense, here, aggravated murder.

That statute does not require corroboration of a particular

theory of the commission of the offense.

“It is not necessary that the corroborating evidence be

direct and positive; it may be circumstantial. Nor is it nec-

essary that there be independent corroborating evidence

with respect to every material fact necessary to be estab-

lished to sustain a conviction for the commission of a crime.

Where there is any evidence apart from that of the accom-

plice tending to connect the defendant with the commission

of the crime, the question of whether the accomplice’s testi-

mony is corroborated is one for the trier of fact.”

State v. Walton, 311 Or 223, 242-43, 809 P2d 81 (1991) (cita-

tions omitted; emphasis in original). To be sure, evidence of

a defendant’s association with an accomplice at a particular

location, by itself, is insufficient to satisfy the corroboration

Cite as 355 Or 612 (2014) 621

requirement of ORS 136.440. State v. Carroll, 251 Or 197,

200, 444 P2d 1006 (1968). But such evidence still may be

considered in conjunction with other evidence that, taken as

a whole, tends to connect the defendant with the commission

of the offense. See id.

With those principles in mind, we conclude that the

record contains sufficient evidence to corroborate Stafford’s

accomplice testimony relating to the commission of Jabbie’s

murder. There is evidence that defendant broke into Jabbie’s

apartment on July 4, 2004, and assaulted Jabbie. There is

further evidence that Jabbie testified before a grand jury

about the incident and that, the day before the murder, the

grand jury issued an indictment charging defendant with

first-degree burglary and fourth-degree assault. The evi-

dence at trial thus established that defendant had assaulted

Jabbie once and had motive to assault him—a key witness

against defendant—the day after the indictment was issued.

See State v. Klein, 243 Or App 1, 12, 258 P3d 528 (2011), aff’d,

352 Or 302, 283 P3d 350 (2012) (accomplice’s “rendering of

the motive for the crimes” was confirmed by other evidence

relating to the events giving rise to the alleged motive).

In addition, the evidence at trial included the tes-

timony of Grooms and Alcantara, who saw Stafford leave

Jabbie’s apartment at about 10:30 p.m., heard gunshots

fired moments later, and witnessed flashes through the

window of Jabbie’s apartment. They also saw a man gener-

ally matching defendant’s description leave the apartment

immediately after that.

The evidence at trial also included cell phone data

corroborating precisely Stafford’s testimony about her and

defendant’s movements the night of the murder. Specifically,

the cell phone records show that a number of calls were

placed to defendant’s cell phone, including two from a pay

phone located at Clackamas Town Center and several others

between defendant’s two cell phones placed between 10:00 p.m.

and 10:30 p.m. using cell towers located within two blocks of

Clackamas Town Center. Taken in isolation, the cell phone

data constitute mere association and location evidence, as

defendant suggests. But in the context of the other evidence,

it “tends to connect” defendant with the murder.

622 State v. Washington

In evaluating the sufficiency of the foregoing evi-

dence, we stress that ORS 136.440(1) does not require com-

plete corroboration of all of the elements of the offense. Nor

does it require that corroborating evidence be direct and

unequivocal. As this court emphasized in Walton, where

there is “any evidence * * * tending to connect” the defendant

with the commission of the offense, the question whether

evidence corroborates the accomplice’s testimony is one for

the trier of fact. 311 Or at 243. The evidence produced in this

case meets that standard. The trial court therefore did not

err in denying defendant’s motions for judgment of acquittal

on the first five charges against him.

B.  Use of Stun Device (Assignment 6)

In his sixth assignment, defendant asserts that

the trial court erred in ordering that he wear a stun device

during trial. The facts relevant to that assignment are as fol-

lows. In a pretrial hearing, the Clackamas County Sheriff’s

Office required defendant to appear in court wearing a stun

device. Defendant also learned that he would be required to

wear a similar device during the trial. He objected, argu-

ing that requiring him to wear a stun device during trial

would violate his right to communicate with counsel and

assist in his defense as guaranteed by Article I, section 11,

of the Oregon Constitution and the Sixth and Fourteenth

Amendments to the United States Constitution.

The trial court held a hearing on defendant’s objec-

tion. At that hearing, the state offered the testimony of

Sergeant Phillips of the sheriff’s office in support of requir-

ing defendant to appear in court wearing a stun device.

Phillips explained that the sheriff’s office was responsible

for security at the courthouse. He testified that defendant

was a member of a gang, that he had “about 40 to 50” associ-

ates, and that the sheriff’s office was concerned that—either

working alone or in concert with defendant—those persons

might aid him in escaping from the courthouse; when asked,

he agreed that gangs like the one with which defendant was

associated “use power, influence, and violence to intimi-

date others.” Phillips also agreed that, based on defendant’s

“athletic ability and strength,” he was capable of overpow-

ering a deputy in the courtroom. The deputy was aware of

Cite as 355 Or 612 (2014) 623

the charges in the case and that defendant had a “criminal

history of violence” and agreed that defendant’s reported

threats against Stafford were a “concern.” Phillips stated

that defendant was classified as a “dangerous inmate” and

that he was aware that defendant had told a deputy at the

jail that the deputy was “not his boss.” He said that, without

the use of the stun device, he could not “assure” the secu-

rity of the courtroom. He noted that, in the courtroom, there

would be numerous persons within 30 feet of defendant and

that defendant could cover that distance in the time it would

take a deputy to react.

Phillips also described the stun device that the

sheriff’s office planned to use. The device was manufactured

by the Stinger Company and was called a “React Band-it.”

It was rectangular in shape and approximately four inches

wide, six inches high, and one and one-half inches deep; it

weighed approximately one pound. The device was meant to

be worn on a limb or on the lower back underneath the sub-

ject’s clothing. It was classified as a “neuromuscular inca-

pacitation” device that used “high levels of voltage with very

low amperage” to deliver an electric shock to the wearer.

Typical effects caused by activation of the device included

pain, loss of mental focus, and uncontrollable muscle contrac-

tions in the area of the body where the device was located;

Phillips testified that “people tend to fall down when they’re

shocked” and “make loud noises” and that “[s]ome people

freeze up in place.” He also explained that, more rarely, per-

sons urinate or defecate when shocked. Phillips noted that

defendant would be able to walk with the device in place and

that, depending on the cut of his clothing, the device would

not be visible to the jury. He said that the device could only

be activated by the deputy holding the triggering device.

Phillips further testified that the “next most restric-

tive device” that was available was shackles and that those

would be “observable,” and that a leg brace which could be

worn under clothing was not “reliable” in preventing a defen-

dant from escaping custody. He stated that other available

security devices included handcuffs, fabric hobbles, Tasers,

pepper spray, “impact weapons,” and firearms. Phillips

described the “general nature” of security in the court

624 State v. Washington

building, including the fact that it had multiple unlocked

exits.

On cross-examination, Phillips testified regarding

a notification form that persons signed when the device was

used. The form explained the results of activation of the

device, including falling to the ground and the “possibility”

of “self-urination” and “self-defecation.” The form also indi-

cated that certain medical conditions were relevant to the

decision whether to use the device, including heart disease,

multiple sclerosis, and pregnancy. The form listed the types

of actions by a wearer of the device that might result in its

activation, including “any outburst or quick movement,” “any

hostile movement,” “tapping of the belt,” failure to comply

with verbal commands, any attempt to escape custody, the

custodial deputy’s “loss of vision[  of the wearer’s hands,

]”

and “any overt act against any person or deputy.”

When asked whether defendant would be “conscious

of the fact that you have this on,” Phillips responded, “Yes.”

He confirmed that, as he had testified on direct examina-

tion, the plan to require defendant to wear the stun device

was based in part on the “possibility,” not the “probability,”

of “gang activity.” Phillips was not aware of any history

of escape attempts, violence in the jail, or “acting out in a

courtroom” by defendant. He testified that it “could be” that

someone in the courtroom could see the deputy holding the

triggering device.

Defendant argued to the trial court that there was

nothing to suggest that he was an escape risk or that he

was dangerous in the current proceeding. He asserted that,

“[w]hen you talk about gang activity it’s speculative.” He

argued that the device “would be likely to inhibit his ability

to assist in his own defense” and that it would be an “impo-

sition” on his ability to testify. He argued that there was no

factual basis for the use of the device and that the court was

required to consider “lesser” alternatives.

The trial court found and ruled as follows:

“*  * that [defendant] is a convicted felon and also has a

*

history of convictions of person crimes involving violence;

that in this case [defendant] faces a—if he is convicted

Cite as 355 Or 612 (2014) 625

faces a substantial sentence and the risk of the death pen-

alty; that [defendant] has a history of gang contacts and

affiliations; that [he was] alleged to have intimidated wit-

nesses in this case, and to have murdered a witness regard-

ing charges in [another county]; that we have a lack of a

secure courtroom; that there are exits from courtrooms

into public areas, and many exits from the courthouse to

the street; that the defendant if he were not encumbered in

some way he would have a means of escape if there were no

security device; that he will be in civilian clothing which

would aid in his escape; that the Sheriff’s Department can-

not guarantee security in this case without some sort of

device; [g]iven the defendant’s size and physical capacities

[defendant] poses the risk of overpowering a deputy or a

witness if he’s not restrained; that given the facts of this

case it would be difficult for law enforcement or person-

nel [sic] to identify any of [defendant’s] confederates that

might be present in the courtroom; that the stun device

will be operated only by trained personnel; that the device

*  * will not be visible under clothing; that the defendant

*

will be seated at counsel table furthest away from the jury

so as to minimize any possibility that something might

be visible; that unless the device was activated it would

not impede the defendant’s movements or ability to con-

sult with his attorney; that this device is the least visible,

least intrusive means of providing the security necessary

for this trial; that because of these factors the defendant

poses an immediate and serious risk of escape during the

trial and [an] immediate and serious risk of disrupting

the proceedings, and that because of all those [factors],

the Stinger React Band-it, [is] an appropriate device for

security in this case.”

After the trial court made those findings, Phillips

further explained that the deputy holding the triggering

device would be in uniform and that, in his experience, mem-

bers of the public would not recognize the triggering device

as part of a stun device system. The trial court ordered that

the deputy holding the triggering device be in uniform. The

next day, before jury selection began, the trial court found

that the device, which was on defendant’s leg, was not visi-

ble and that the hands of the deputy holding the triggering

device “would probably not be visible to the jurors.” The trial

court made a similar finding at the beginning of each day of

trial.

626 State v. Washington

On review, defendant again contends that use of the

stun device failed to comport with Article I, sections 11 and

13, the Sixth Amendment, and the Due Process Clause of

the Fourteenth Amendment. Specifically, defendant argues

that, if seen by a jury, such a device might prejudice the

jury against a defendant, thereby impairing his right to a

fair trial; and that, even if the device is not seen, it might

impede a defendant’s ability to communicate with counsel

and participate in his or her defense. Defendant notes that

the latter concern is exacerbated in the case of a stun device

as opposed to other forms of physical restraint, due to the

possibility of its deliberate or accidental activation.

Defendant argues that the use of stun devices poses

an issue of first impression for this court. He proposes that

we adopt a detailed set of criteria that a trial court should

be required to meet before it approves the use of a stun

device, including holding a pretrial hearing if requested by

the defendant and making findings on the record showing

a “manifest need” for physical restraint of the defendant.

According to defendant, factors relevant to the latter inquiry

include the charges in the case; the defendant’s criminal and

escape history, if any; any “special risks” posed by the pro-

ceeding; the physical characteristics of the courtroom and

courthouse; and the availability of other security devices

or measures. Other criteria advocated by defendant include

that the device not pose an unacceptable medical risk to the

defendant; that it not be capable of inflicting pain or suffer-

ing that would constitute “unnecessary rigor” in contraven-

tion of Article I, section 13; that it not be visible to the jury;

and that it not prevent the defendant from communicating

with counsel.

Defendant argues that, in his case, the trial court

erred as a procedural matter in failing to consider on the

record any less restrictive alternatives to the stun device,

failing to consider any possible medical risk to defendant of

using it, and failing to consider whether the pain that the

device was capable of causing would constitute unnecessary

rigor. Defendant also asserts that, as a substantive matter,

use of the device was not justified in his case because he had

no history of escape attempts, because he planned to remain

Cite as 355 Or 612 (2014) 627

seated at counsel table throughout the proceeding, and

because there were other courthouse security mechanisms

available. Finally, he asserts that the trial court’s error was

not harmless.

The state acknowledges that defendant had no his-

tory of escape attempts or misconduct while in custody, but

contends that the nature of the current charges, defendant’s

“history of violence,” his affiliation with a “dangerous street

gang,” his previous intimidation of witnesses, his custody

classification as a “dangerous inmate,” and his physical abil-

ity to overcome a deputy in the courtroom justified the use

of restraints and that the stun device was the only available

form of restraint that would not be visible to the jury. The

state further contends that the risk of accidental discharge

of the device was low and that defendant was fully informed

of the actions that might prompt a discharge. It also con-

tends that the trial court did, in fact, consider less restric-

tive alternatives and that, in any event, defendant declined

to wear any device that would be visible, which included var-

ious less restrictive devices.

The state further asserts that any error was harm-

less because the stun device was not visible to jurors and

because nothing in the record suggests that use of the device

adversely affected defendant’s defense. As to the latter

point, the state notes that defendant did not testify at trial,

that nothing in the record demonstrates that he would have

testified in the absence of the device, and that nothing in

the record demonstrates that use of the device interfered

with his ability to interact with counsel. The state urges

this court not to presume prejudice from the mere possibil-

ity of mental and psychological effects arising from the use

of such a device, but to find error only when adverse effects

are affirmatively and concretely demonstrated.

The use of restraints during a criminal trial is not

an issue of first impression. As this court stated in Bowen,

340 Or at 495, “[t]his court long has recognized the right of

a criminal defendant to appear free of physical restraints

during a jury trial.” See also State v. Smith, 11 Or 205, 207,

8 P 343 (1883) (citing with approval principles enunciated

in State v. Kring, 1 Mo App 438 (1876), pertaining to the

628 State v. Washington

common-law privilege to appear in court unfettered). That

right is grounded in Article I, section 11, of the Oregon

Constitution, which guarantees a defendant the right to a

public trial by an impartial jury and the right to be heard

“by himself [sic] and counsel,” and in the Sixth Amendment

to the United States Constitution, which provides in part

that, “[i]n all criminal prosecutions, the accused shall

enjoy the right *  * to have the Assistance of Counsel for

*

his defence [sic].” See also ORS 136.415 (“A defendant in a

criminal action is presumed to be innocent until the con-

trary is proved.”); State v. Wall, 252 Or App 435, 437-38,

287 P3d 1250 (2012), rev den, 353 Or 280 (2013) (physically

restraining a defendant implicates Article I, section 11, and

the Due Process Clause); State v. Bates, 203 Or App 245,

250, 125 P3d 42 (2005), rev den, 340 Or 483 (2006) (same).

Specifically, the use of physical restraints can impinge on

the presumption of innocence to which a defendant is enti-

tled and may also impair a defendant’s ability to participate

in his or her defense, such as by consulting with counsel or

by taking the stand as a witness. See Bates, 203 Or App at

251.

Nevertheless, a trial court has discretion to order

physical restraint of a defendant if there is sufficient evi-

dence of a substantial risk of dangerous or disruptive behav-

ior, including the risk of assaultive conduct toward other

persons and the risk of an attempted escape from custody.

See State v. Long, 195 Or 81, 90-93, 244 P2d 1033 (1952)

(citing with approval cases from other jurisdictions holding

that trial courts had discretion to order that a defendant be

restrained when evidence showed that the defendant might

attempt to escape, that he might attack other persons, or

that he was of dangerous character, as evidenced by his pre-

viously having killed a guard).

Such evidence should be placed on the record in a

hearing for that purpose. After hearing relevant evidence

from the state and the defendant, the trial court must make

a record of its factual findings and reasoning in support of

its order. See generally McCarthy v. Oregon Freeze Dry, Inc.,

327 Or 185, 188, 957 P2d 1200 (1998) (“the practical needs of

meaningful appellate review underlie the court’s obligation

Cite as 355 Or 612 (2014) 629

to make explanatory findings” to support the exercise of

discretion). We review a trial court’s order requiring that

a defendant be physically restrained for purposes of court-

room security, including restraint by means of the electronic

stun device at issue here, for abuse of discretion. See State

v. Farrar, 309 Or 132, 156-58, 786 P2d 161, cert den, Oregon

v. Wagner, 498 US 879 (1990) (trial court did not abuse dis-

cretion in ordering that defendant be restrained at trial by

leg cuffs joined by a chain, because affidavits and a signed

statement attested that defendant had threatened witnesses

and had engaged in violent conduct toward other persons

before his arrest).

Also pertinent to the inquiry is the extent to which

a defendant establishes that the use of restraints interfered

with his or her ability to participate with counsel in the

defense of his case. See Bowen, 340 Or at 496 (declining to

consider unpreserved claim of error relating to requirement

that the defendant wear a stun belt during his trial, because

“defendant failed to provide evidence or point to anything in

the record indicating that the stun belt affected his ability

to assist in his defense”).

In this case, evidence concerning defendant’s dan-

gerousness and the risk of possible escape was placed on the

record. And, based on that evidence, the trial court found

that defendant had a history of violent person crimes; that

the current charges involved a substantial sentence includ-

ing the risk of a death penalty; that defendant had a history

of gang affiliations; that he was alleged to have intimidated

witnesses in this case; that his “size and physical capacities”

might allow him to overpower other persons in the court-

room; and that the victim in this case had been a witness in

another case. The court also referred to the features of the

courtroom and the courthouse that pertained to the security

of the proceedings. The trial court found that the stun device

would be operated by trained personnel, that it would not

be visible, that it would not impede defendant’s movements

or his ability to consult with counsel, and that it was the

“least visible, least intrusive” means of providing the neces-

sary security. The court concluded that defendant posed an

immediate and serious risk of escape and of disrupting the

630 State v. Washington

proceedings and that use of the stun device therefore was

appropriate. In addition to those findings, the trial court

also made findings on each day of defendant’s trial that the

device was in fact not visible to the jury; defendant does not

contend otherwise.

Evidence in the record supports each of those find-

ings. Moreover, defendant failed to offer any evidence or

point to anything in the record that suggests that, because

of the stun device, he was impeded in his effort to assist

in his defense. On this record, we cannot say that the trial

court abused its discretion in requiring that defendant be

restrained by use of a stun device.

C.  Anonymous Jury (Assignment 7)

In his seventh assignment of error, defendant

argues that the trial court erred in empanelling an anony-

mous jury. The facts that are relevant to that assertion are

as follows. Before the commencement of voir dire in defen-

dant’s trial, the trial court and counsel for defendant and

the state discussed, by e-mail and in chambers, the ques-

tion whether and to what extent juror names would be dis-

closed. In an e-mail to counsel for the parties, sent two days

before trial began, the court stated, “Given the nature of

this case[,] I do not want jurors’ names to be used during

voir dire, and do not want those names to be visible to the

defendant or anyone else in the courtroom.”

On the morning that jury selection began, the pros-

ecutor and defense counsel further discussed the subject

with the court in chambers. Following that discussion,

defense counsel noted for the record that the parties had

discussed in chambers and by e-mail “whether or not the

attorneys would be allowed to use or refer to the jurors by

the last name.” Defense counsel explained that “[w]e would

expect that the attorneys be allowed to.” Counsel urged the

court on the record to permit the use of prospective jurors’

names in open court. Counsel noted that he was “aware that

a number of these jurors have been on jury service,” that

they “have been referred to by name previously in jury selec-

tion,” and that to deviate from what counsel characterized

as standard practice would create “a sense of a need for ano-

nymity” that would be prejudicial to defendant.

Cite as 355 Or 612 (2014) 631

The prosecutor replied that “we are neutral on this

subject,” but wanted to note for the record “that the court

has allowed the parties to have the names of the individual

jurors, and I appreciate that very much,” because, as defense

counsel explained, having those names aids in “identifica-

tion of the jurors and understanding who they are and the

relationships, too, and we think that’s very important.”

The trial court ordered that jurors be referred to

in court “by number only” and that the names not be made

available to the public. The court further stated that it

would explain to jurors that “this is done in every case.” The

trial court then provided such an explanation to each and

every group of jurors questioned during voir dire. In a typ-

ical example of the explanation, the trial court explained

to the first prospective juror that “[i]t’s how we do it on all

cases. It may seem kind of impersonal, but it’s how we do it

in all trials * * *.”

On review, defendant argues that the trial court

erred in empanelling an anonymous jury without finding, on

the record, a sufficient basis for doing so. Defendant argues

that the trial court’s ruling violated the impartial jury guar-

antee of Article I, section 11, of the Oregon Constitution. He

further argues that, for the same reasons that empanelling

an anonymous jury violated his rights under the Oregon

Constitution, it likewise violated his rights under the Sixth,

Eighth, and Fourteenth Amendments to the United States

Constitution.

The state advances three arguments in response.

First, the state argues that the jury empanelled in this case

was not an “anonymous” jury. The state acknowledges that,

in a pretrial ruling by e-mail, the trial court ordered that

defendant not be allowed access to the prospective jurors’

names and that only counsel be given that information.

Nevertheless, the state contends that, on the first day of jury

voir dire, the prosecutor stated that the court had allowed

“the parties” access to juror identities and nothing in the

record suggests that defendant was not included. Second, the

state argues that, in any event, defendant failed to preserve

“[m]ost of the arguments” asserted in this assignment of

error. In particular, the state contends that defendant failed

632 State v. Washington

to ask the trial court to make findings supporting the use of

juror numbers rather than names and failed to argue that

use of an anonymous jury would violate his state or federal

constitutional rights to an impartial jury or a public trial.

Third, the state contends that the trial court’s directive did

not prejudice defendant, because the court explained to the

jurors that referring to them by number in open court was

the practice used in all cases and because the jurors under-

stood that the parties had been provided with their names

and other personal information.

This court has addressed the circumstances under

which it may be permissible to empanel anonymous juries

in two recent cases, State v. Sundberg, 349 Or 608, 247 P3d

1213 (2011), and State v. Rogers, 352 Or 510, 288 P3d 544

(2012). Because those decisions are dispositive, we consider

each of them in some detail before addressing the arguments

that the parties dispute in this case.

In Sundberg, the defendant had been charged with

several sex crimes. Prospective jurors in the case were

directed by the trial court not to disclose their names, their

addresses, or the names of their employers during voir dire,

and neither the defendant nor defense counsel was permitted

access to the restricted information. The defendant objected

to the court’s procedure, arguing that failing to disclose juror

identities compromised his ability to evaluate the prospec-

tive jurors. The trial court overruled the defendant’s objec-

tions, explaining that it, and a number of other judges in

that circuit, had adopted the practice in all cases in response

to concerns about juror privacy. 349 Or at 610-12.

After the jury returned a guilty verdict, the defen-

dant renewed his objections by means of a motion for a new

trial. Id. at 612. The defendant noted that some of the jurors

had participated in or watched voir dire in other courtrooms

in which juror anonymity was not required. Those jurors,

he argued, might have concluded that the anonymity in

his case was required because the court thought him to be

dangerous, thus violating his right to an impartial jury and

the presumption of innocence. Id. at 612-13. The trial court

denied that motion, and the Court of Appeals affirmed on

other grounds.

Cite as 355 Or 612 (2014) 633

On review before this court, the defendant argued

that the trial court had erred in empanelling an anonymous

jury without making findings justifying the procedure. The

state’s initial response was that the defendant had failed to

preserve that contention, by neglecting to ask the trial court

to make findings before voir dire. Id. at 614. On the merits,

the state argued that legitimate concerns for juror privacy

justify anonymity and, in any event, it was highly unlikely

that jurors would draw an inference from the practice that

the defendant was dangerous or guilty. Id. at 618.

This court began by rejecting the state’s argument

that the defendant had failed to preserve the issue. The

court stated that the defendant plainly had preserved the

“core claim” that empanelling an anonymous jury violated

his rights to an impartial jury and the presumption of inno-

cence. Id. at 614. The court acknowledged that the defendant

had failed to request findings, but it concluded that, under

the circumstances, that did not matter. The court noted, in

particular, the fact that the trial court had stated categor-

ically that it had decided, as a matter of general policy, to

employ its procedure of empanelling anonymous juries and,

implicitly, that findings were not needed to justify the proce-

dure in any particular case. Id.

Turning to the merits, this court concluded that,

although trial courts possess inherent authority to empanel

anonymous juries in criminal cases, that authority is lim-

ited by a defendant’s right to an impartial jury, guaranteed

by Article I, section 11, of the state constitution. 349 Or at

617. The court further concluded that the use of anonymous

juries can impair that constitutional right in either of two

ways:

“Empanelling an anonymous jury can affect a defendant’s

right to such an impartial jury, first, by hindering his abil-

ity to conduct voir dire and select jurors who are impar-

tial, and second, because it is an external factor—not the

facts or the law—that may compromise the jury’s ability to

remain impartial by implying that a defendant is danger-

ous, thus undermining the presumption of innocence. To

be sure, anonymity may also imply a legitimate concern for

juror privacy unrelated to the dangerousness of a defen-

dant. But in a criminal case, there is a significant risk that

634 State v. Washington

members of the jury might infer that their names were

being withheld to protect them from defendant or others

acting on his behalf.”

Id. at 620 (citations omitted).

Because of that potential to impair a defendant’s

constitutional rights, the court concluded that anonymous

juries are permissible on only two conditions. First, the

trial court must make findings “that the circumstances of

the particular trial provide sufficient grounds to believe

that jurors need the protection provided by anonymity.”

Id. at 621. While it endorsed no particular factors that a

trial court may consider, the court stated that courts have

authority “to protect jurors from the risk of physical harm,

intimidation, or harassment—whether by parties, the press,

or the public—by withholding juror names and other identi-

fying information.” Id. at 622. The court emphasized, how-

ever, that the need for an anonymous jury “must be made on

the facts of each case—and not on the basis of a generalized

desire to protect the anonymity of jurors in all cases in the

interest of juror privacy.” Id.

Second, if the trial court makes appropriate find-

ings that grounds exist to empanel an anonymous jury, then

the court “must take reasonable precautions to ensure that

the defendant’s right to an impartial jury is protected.” Id.

Those precautions may include permitting extensive voir

dire and providing a neutral explanation to the jury regard-

ing the need for anonymity. Id. at 622-23.

The court in Sundberg concluded that the trial court

had erred in failing to make any findings about the need for

an anonymous jury. Id. at 624. The court further concluded

that the error was not harmless. The court noted that “the

use of an anonymous jury can cause prejudice to a defendant

by suggesting to jurors that the defendant may be dangerous

and, by extension, guilty.” Id. at 624-25. That possibility, the

court said, was heightened because some of the jurors had

participated in other cases in which anonymous juries had

not been used. Id. Particularly in a case in which the state’s

case largely turned on the credibility of the witnesses, the

court concluded that “the unexplained use of an anonymous

jury created too great a risk that the jury may have believed

Cite as 355 Or 612 (2014) 635

that defendant was dangerous—and, therefore, that he was

more likely to be guilty, denying defendant the right to a

trial by an impartial jury.” Id.

In Rogers, the defendant had been convicted of multi-

ple counts of aggravated murder and sentenced to death; the

convictions had been affirmed on appeal, but the sentence

had been vacated and remanded for resentencing. State v.

Rogers, 313 Or 356, 836 P2d 1308 (1992), cert den, 507 US

974 (1993). On remand, a jury was empanelled solely for

the purpose of sentencing. The trial court gave prospective

jurors the option of withholding certain identifying informa-

tion requested on juror questionnaires. It also prohibited the

use of juror names in open court and prohibited the defen-

dant from having access to juror names and other identi-

fying information. The court did provide the defendant’s

attorneys with prospective jurors’ names and addresses and

permitted them to question individual jurors about withheld

information and informed at least some members of the jury

of that fact. It also informed the jury that the described pro-

cedure was for the sole purpose of protecting their privacy

from the public, consistent with an informal policy adopted

by some of the judges in that particular circuit. 352 Or at

534-37.

On review, the defendant argued—relying on

Sundberg—that the trial court had erred in overruling his

objections to empanelling an anonymous jury. The state

responded that the jury was not, in fact, “anonymous” within

the meaning of Sundberg, because, although the defendant

was not permitted to know the names of the jurors, his law-

yers were. Id. at 537.

This court rejected the state’s argument, explain-

ing that

“[j]urors may be ‘anonymous’ in different ways—from the

defendant’s perspective, because the defendant does not

know their identifying information, from counsel’s per-

spective, because counsel does not know their identifying

information, and from their own perspective, because they

understand that identifying information that they ordi-

narily would be required to provide may be withheld, and,

in any event, will not be provided to the defendant.”

636 State v. Washington

Id. at 540. The court explained that, when a jury is anony-

mous from the perspective of the defendant, it may prevent

the defendant from assisting in identifying jurors who may

be biased against him or her. The court further explained

that, when a jury is anonymous from the perspective of the

jury itself—particularly when a jury is aware that anonym-

ity is not the norm—that circumstance may suggest that

their identities are being protected because the defendant is

dangerous. Id. at 540-41. The court reasoned that the pro-

cedure that the trial court used “gave rise to the same risks

that the court identified in Sundberg.” Id. at 541. The court

concluded that the principles relating to anonymous juries

therefore were applicable. Id.

On the merits, this court concluded that the trial

court erred in failing to make the required findings and had

instead relied on a generalized policy that it apparently had

applied to all cases. Id. at 542. The court further concluded

that the error was not harmless, particularly in light of the

fact that concerns about the inference of dangerousness that

jurors may draw from their anonymity are “amplified” in

the context of a capital penalty-phase proceeding, in which

a defendant’s future dangerousness is “specifically at issue.”

Id. at 544.

With this court’s decisions in Sundberg and Rogers

in mind, we turn to this case. We begin with the state’s

contention that the jury was not actually “anonymous.” As

we have noted, the state advances two arguments in sup-

port of that contention: First, because the record does not

demonstrate that juror identities were not made available

to both defendant and his lawyers, and second, because,

in any event, the information was made available to his

lawyers.

The first of the state’s arguments is defeated by the

pretrial ruling that, “Given the nature of this case[,] I do

not want jurors’ names to be used during voir dire, and do

not want those names to be visible to the defendant.” The

state acknowledges that ruling, but it insists that the court

might have changed its mind after further in-chambers dis-

cussions, as reflected by the prosecutor’s later summary of

Cite as 355 Or 612 (2014) 637

the court’s decision to allow “the parties” to have the names

of the individual jurors. As we have noted, however, defen-

dant’s lawyer summarized the same decision as allowing

“the attorneys” to have access to juror identities. Moreover,

nothing that the court said during the proceedings suggests

that it had changed its mind about providing defendant

access to the information.

As for the contention that jurors are not “anony-

mous” if their names are revealed to counsel, Rogers is dis-

positive. The state made precisely the same argument in

that case, and this court rejected it. We do so likewise in

this case.

We turn to the state’s argument that defendant

failed to preserve the contention that the trial court was

required to make findings before empanelling an anon-

ymous jury. Defendant concedes that he did not ask the

court to make any particular findings before empanelling

the jury. He argues, however, that neither did the defendant

in Sundberg. According to defendant, just as the court in

Sundberg found that the defendant in that case nevertheless

adequately preserved the issue, so also should we conclude

in this case, based on the fact that, in light of the court’s

statement that anonymous juries were required in all cases,

a request for findings would have been superfluous.

We need not address that argument because, even

assuming that defendant is correct that his failure to ask

for findings may be excused, the trial court did not commit

reversible error in empanelling an anonymous jury. As we

have noted, both Sundberg and Rogers stated that, before

empanelling an anonymous jury, a trial court must make

findings that the particular circumstances of the case pro-

vide strong grounds for the practice. The requirement, how-

ever, does not exist for the mere sake of making findings. It

exists for the purpose of ensuring that the trial court care-

fully considers the justifications for empanelling an anon-

ymous jury in the context of the particular case. In this

case, the record reflects that the trial court carefully took

into consideration the particular circumstances of this case

before deciding to empanel an anonymous jury.

638 State v. Washington

The trial court explained that it believed that “the

nature of this case” justified the practice. To be sure, the

trial court did not spell out precisely what it meant by “the

nature of the case.” But it is not difficult to determine what

the trial court meant.

In that regard, it is useful to note that the trial

court’s consideration of the parties’ arguments about the

use of an anonymous jury followed immediately on the heels

of its consideration of their contentions concerning the use

of a stun device. Indeed, the arguments are separated by a

few lines on the same page of the transcript of pretrial pro-

ceedings. The trial court had just found, in some detail, that

defendant was a convicted felon with a history of convic-

tions for person crimes involving violence; that he had a his-

tory of connections with gangs; that he faced a substantial

sentence that included a risk of the death penalty; that he

already had been alleged to have intimidated witnesses in

the case; that the courtroom was not secure; that there were

many exits directly from the courtroom to the street; that

defendant posed a significant risk of attempting to escape

from the courtroom; and that, given his size and weight,

defendant could readily overpower court security personnel

or others in the courtroom.

In Sundberg, this court enumerated a “nonexclusive

list” of factors that trial courts may consider in determining

when it is appropriate to empanel an anonymous jury. Those

factors include the defendant’s involvement with organized

crime, the defendant’s participation in a group with poten-

tial to harm jurors, the defendant’s past attempts to inter-

fere with the judicial process or witnesses, and the risk of

lengthy incarceration if the defendant is convicted. 349 Or at

621-22. In this case, the trial court’s findings concerning the

need to require defendant to wear a stun device addressed

each of those factors.

Defendant did not object at trial that the trial

court’s findings were inadequate. Nor does he suggest on

appeal that the findings do not meet the requirements of

Sundberg and Rogers. Instead, as we understand it, defen-

dant’s argument is that the trial court erred in failing to

repeat the same findings that it had just made with respect

Cite as 355 Or 612 (2014) 639

to one aspect of courtroom security when addressing another.

Although repeating the findings—or at least adopting them

by reference—certainly may be preferable, we cannot say

that it amounts to reversible legal error to fail to do so. Here,

the trial court made the record that Sundberg and Rogers

require a trial court to make.

There remains the question whether the trial court,

having made the necessary findings to support withholding

juror names from defendant, took reasonable precautions

to ensure that defendant’s right to an impartial jury was

protected. In Sundberg, the court explained that the precise

nature of those precautions “may differ depending on the

circumstances at trial.” 349 Or at 622. One precaution that

the court mentioned, however, was a trial court’s provision

of “a neutral explanation[ ] for withholding juror identities.”

Id. at 623.

In this case, the trial court did just that. As we have

noted, the trial court advised every group of jurors during

voir dire to the effect that referring to jurors by number,

and not by name, “is how we do it in all cases” and “it’s

how we do it in all trials.” Such an explanation provided

the jury with a plausible and nonprejudicial reason for not

using their names and minimized the extent to which jurors

might draw a negative inference from the practice. Under

the circumstances, we conclude that the trial court did not

err in empanelling an anonymous jury.

D.  Penalty Phase Security Measures (Assignments 8-10)

In his eighth, ninth, and tenth assignments of error,

defendant challenges the trial court’s implementation of var-

ious additional security measures during the penalty phase

of the trial without first informing the parties. Specifically,

in his eighth assignment, defendant argues that the trial

court erred in failing to inform him earlier that some jurors

had expressed concerns to the judge’s clerk about court-

room security. In his ninth assignment, defendant argues

that the trial court erred in adopting additional security

measures without informing the parties. And, in his tenth

assignment, he argues that the trial court erred in denying

his request to interview the jury regarding the effect, if any,

of the security measures on its penalty-phase deliberations.

640 State v. Washington

The trial court’s errors, defendant argues, deprived him of

the right to a fair trial and an impartial jury guaranteed

by Article I, section 11, of the Oregon Constitution and the

Sixth and Fourteenth Amendments to the United States

Constitution.

The relevant facts are as follows. On the day that

the jury notified the court that it had reached a verdict in

the guilt phase of defendant’s trial, “at least half of” the

jurors expressed concern to the trial judge’s judicial clerk,

Hauck, about security in the courtroom as the verdict was

read. Jurors expressed concern that spectators would be

“audible” or “upset,” that jurors would have to pass near

“family members or people from the courtroom” while leav-

ing the courtroom, and that they would be followed out-

side the courthouse; they asked for an escort to their vehi-

cles. Hauck later described jurors’ concerns as relating to

“[r]eactions from people in the courtroom.” One juror told

Hauck that, during an earlier part of the trial, as she was

leaving the courthouse, “she thought that someone from the

gallery had said something to her in the hallway.” Hauck

testified that, when conveying their concerns, many of the

jurors were “crying,” “upset,” “concerned,” and “scared”; she

also described them as “excited, emotional.” Hauck immedi-

ately informed the trial judge of the jurors’ concerns.

The jury then went to the courtroom to deliver its

guilt-phase verdict. The trial judge cautioned persons in the

courtroom to turn off all electronic devices and not to react

in any way to the verdict. The subsequent pronouncement

of the verdict was outwardly uneventful, and the trial court

instructed the jury to report the following week for com-

mencement of the penalty phase.

After jurors returned to the jury room, they expressed

to Hauck further concerns about the court having instructed

them in open court about the time and place they were to

return the following week for the penalty phase. The jurors

decided to meet at a parking area and walk to the court-

house together. Hauck informed the trial judge of those con-

cerns as well. At the end of the day, the jurors left the court-

house by way of fire stairs and a van took them to their cars;

neither of those methods had previously been used. At her

Cite as 355 Or 612 (2014) 641

request, one juror was escorted across the street to meet a

family member.

On Monday of the following week, the trial judge and

courthouse security staff decided that jurors should meet on

Tuesday at a public parking area, where a county van would

pick them up and bring them to the courthouse. A member of

the judge’s staff telephoned the jurors and informed them of

the arrangement, which continued throughout the penalty

phase.

The next day, in its opening statement in the penalty

phase, the state discussed defendant’s gang affiliation and

his history of violent conduct and informed the jury that its

penalty-phase evidence would focus on the second applica-

ble question: whether there was a probability that defendant

“would commit criminal acts of violence that would consti-

tute a continuing threat to society.” ORS 163.150(1)(b)(B).

According to Hauck, when the jurors returned to the jury

room, they were “pretty upset,” “shocked,” had “the deer in

the headlights look,” and “seemed scared.” That same day,

they asked if their lunch would be provided and, when told it

would not, “they started to coordinate amongst themselves

to go to one location to eat and eat together.” When advised

later that day that lunch would be provided, they “seemed

happy” that they would not have to leave the courthouse.

In the evidentiary portion of the penalty phase, the

state offered the testimony of a number of witnesses, includ-

ing law enforcement officials, a juvenile custody service

worker, a parole and probation officer, corrections officials,

and Stafford. Those witnesses testified about defendant ‘s

long affiliation with the Six Deuce Crips gang, the nature of

gang culture generally and the propensity of gang members

to pose prison security problems, and defendant’s record of

gang-related criminal activity in particular, including his

involvement with illegal drugs and weapons, violent crime,

sex abuse, and “aggressive and hostile” behavior while in a

correctional institution.

Defendant also called a number of witnesses, includ-

ing family members and personal acquaintances, who testi-

fied that defendant is a caring son, a compassionate father to

642 State v. Washington

his children, and a protective brother to his siblings. Defen-

dant also called a forensic psychologist, who testified that,

although defendant had a history of violence in the commu-

nity, he had no record of reported incidents of violence, pos-

sessing a weapon, or acting on behalf of a gang during five

years in various adult correctional institutions. The psychol-

ogist acknowledged, however, the possibility that defendant

could influence other gang members to engage in violent

acts outside the prison. Finally, defendant called a prison

consultant, who testified that, although defendant had been

sanctioned for being disobedient to institutional staff mem-

bers, he believed that the Department of Corrections could

“manage” defendant’s conduct in an institution.

After the presentation of evidence in the penalty

phase, and outside the presence of the jury, the trial court

informed the parties that, from the beginning of the penalty-

phase proceeding, it had implemented certain additional

security measures. The following day, the court placed on

the record the following summary of its disclosure:

“Last evening after trial, I disclosed to the attorneys that

certain security measures had been implemented around

the courthouse for the security of the jury. I did not disclose

this earlier, because of the need to preserve the integrity of

that security. I did disclose it last night in order to give the

defense an opportunity to make a record about any effects

those security measures could possibly have on the jury’s

decision-making.

“I want to make a record about the jury’s request for

security and what the Court did in response to the jury’s

request. I also want to make a record about what security

threats were perceived by law enforcement personnel and

what they did to address those threats.”

The trial court then took evidence specifically relat-

ing to the implementation of the additional security mea-

sures, including testimony by the court’s judicial clerk

about the concerns expressed to her by the jury at the con-

clusion of the guilt phase, as described above. In addition,

Sergeant Phillips—who, as previously noted, was responsi-

ble throughout the guilt and penalty phases for courtroom

and courthouse security—testified that three persons iden-

tified as having past gang associations had attended parts

Cite as 355 Or 612 (2014) 643

of defendant’s trial and that, when that occurred, deputies

made special efforts to keep track of those persons; he stated

that deputies were particularly concerned about defendant’s

brother, who was scheduled to testify for the defense and

whom Phillips described as a “very dangerous, violent” per-

son. On one occasion, Phillips was informed by another dep-

uty that one of the identified gang associates had made a

comment to the victim’s uncle. Another witness told Phillips

that he was “scared to death.” Phillips generally described

the security surrounding defendant’s trial as being raised

“to a new height” due to concerns about defendant’s own

capabilities and also about “what his extended network of

associates would be willing to do for him and with him.”

He testified that defendant’s codefendant, Stafford, was

afforded “special transportation” to and from the courthouse

on the days that she testified.

Phillips testified that, after the jury rendered its

guilt-phase verdict, he was notified by the judge’s staff

about the jury’s safety concerns; he believed that the mea-

sures that were implemented at the beginning of the pen-

alty phase were, “at the very minimum, appropriate.” He

also stated that, if further resources had been available, he

would have provided a higher level of security. He testified

that the capacity of the gallery was approximately 50 per-

sons and that he was unable to distinguish which persons

were associated with defendant and which with the victim;

that, if special transport methods had not been instituted,

there would have been an increased risk of contact between

jurors and spectators; and that keeping the security mea-

sures secret was itself a component of the security plan.

Phillips testified that he did not discuss the jurors’ concerns

with them and that officers involved in transporting jurors

were instructed not to have any conversations with them;

for example, when a juror asked another deputy about defen-

dant’s whereabouts, the deputy declined to respond.

The prosecutor also testified in regard to the per-

ceived need for the penalty-phase security measures. He

testified that, as he and the victim’s uncle were leaving the

courtroom after the jury gave its guilty verdict, he observed

an associate of defendant make a threatening comment to

644 State v. Washington

the victim’s uncle; that two other witnesses expressed fears

about their safety; and that telephone threats were made

to another witness to the effect of, “You testify, and you’re

dead.” The prosecutor testified that he informed the sheriff’s

department of those incidents and asked them to take them

into account in formulating security measures for the pen-

alty phase. The prosecutor believed that the security risks

associated with defendant’s trial were “the gravest that I

have ever encountered.”

Following presentation of the described testimony

regarding the jury’s penalty-phase security concerns, defen-

dant moved for a mistrial or, in the alternative, for a directed

verdict in the penalty phase of life in prison. Specifically,

counsel argued that individual jurors’ expressions of their

fears tainted other jurors’ views of the trial and that, the

court, in responding to those concerns, effectively “vali-

dated” them. He argued that, although the court could have

come to the conclusion that the additional security measures

were appropriate, the defense should have been informed.

Counsel argued that, “at least the parties would have had

an opportunity to tailor a case differently, maybe address

certain fears that even the jurors would have, through ques-

tioning.” Counsel did not otherwise elaborate, however, on

what he would have done differently had the court informed

the parties of the jurors’ concerns earlier—what additional

witnesses might have been called, what different questions

might have been asked, what different testimony might

have been elicited, or what different arguments might have

been advanced.

The state acknowledged that “it would have been

better” if “both parties” had been aware of the security mea-

sures, but argued that the case had presented “unique”

security concerns and that keeping the security plans secret

was an appropriate part of the court’s response to those con-

cerns. The state argued that the trial court had inherent

authority to impose the measures and that there was no evi-

dence of any jury “taint.”

The trial court denied defendant’s mistrial motions.

Defendant then moved to be allowed to question the jurors

Cite as 355 Or 612 (2014) 645

with respect to the security measures. The trial court denied

that motion as well.

The parties then proceeded to closing arguments.

The state focused primarily on the second penalty-phase

question: whether there was a probability that defendant

would commit criminal acts of violence that would consti-

tute a continuing threat to society. The state pointed in part

to evidence that, even when he was incarcerated, defendant

had a motive to carry out acts of violence against persons

outside the prison, including “snitches,” and that he had

the means to do so through gang members who were “dedi-

cated” to him as a “leader” and were willing to commit acts

of violence at his direction. The state also noted defendant’s

record of recidivism, including convictions for violent crimes

after serving sentences on previous convictions. Finally, it

pointed to the nature of the particular murder in this case,

murder of a witness.

Defense counsel’s closing argument (both of defen-

dant’s attorneys gave closing arguments) addressed the sub-

ject of the jurors’ fears of defendant. Counsel emphasized

that the law required the jurors to act on the evidence and

the law, not on their fears: “Are you afraid of [defendant]?

Are you in fear of [defendant]? If you answer these ques-

tions based on emotion, he dies. That’s not the law.” Counsel

told the jury that the state “tried to scare you. They tried to

scare you by using the word ‘gang’ with virtually every wit-

ness.” But the evidence, counsel explained, did not support

the state’s contentions. According to defendant’s counsel, the

evidence showed that defendant was a caring family man

who, at age 37, posed no future risk of danger while serving

a life sentence in prison.

Following the parties’ closing arguments, the trial

court offered to instruct the jury as follows:

“Security Measures Not to Be Considered By the Jury. Vari-

ous security measures are implemented in all court pro-

ceedings. Such measures should in no way be construed by

you as any indication that the Court has formed an opinion

about the matters you are to consider in your deliberations,

and should have no weight or bearing whatsoever in your

deliberations.”

646 State v. Washington

Defendant declined that instruction, and the state deferred

to defendant’s choice in that regard. As previously noted,

the jury answered the three applicable penalty-phase ques-

tions in the affirmative, and the trial court sentenced him

to death.

Again, in his eighth and ninth assignments of error,

defendant asserts that the trial court erred in failing to

disclose to him communications between the jury and the

court and in failing to notify him of the additional security

measures. At the outset, the precise nature of defendant’s

assignments is not clear to us. Ordinarily, an assignment

of error is required to target a particular ruling of the trial

court. See ORAP 5.45(3) (“Each assignment of error shall

identify precisely the * * * ruling that is being challenged.”).

In this case, defendant’s eighth and ninth assignments do

not address any particular rulings. As we understand it,

however, the trial court’s failure to disclose the jury’s com-

munications with the court and the implementation of addi-

tional security measures without notice provided the bases

for defendant’s motion for a mistrial. Consistently with that

understanding, we note that defendant states in his brief

that he preserved the eighth and ninth assignments of error

by moving for a mistrial. Accordingly, we take defendant’s

eighth and ninth assignments of error to be directed at the

trial court’s denial of his mistrial motion.

We review the denial of a motion for a mistrial for

abuse of discretion. State v. Davis, 345 Or 551, 582-83, 201

P3d 185 (2008). To the extent that the trial court’s ruling

was predicated on a conclusion of law, however, we review

that aspect of the decision for errors of law. See State v.

Rogers, 330 Or 282, 310, 4 P3d 1261 (2000) (when discre-

tionary ruling is based on legal ruling, that component of

the decision is reviewed for legal error).

In his eighth assignment, defendant argues that

the trial court erred as a matter of law in failing to disclose

to counsel and the parties its communications with the jury.

According to defendant, Uniform Trial Court Rule (UTCR)

3.120 requires courts to disclose their communications with

juries, and the trial court’s failure to do so here was both

improper and presumptively prejudicial.

Cite as 355 Or 612 (2014) 647

The state responds that UTCR 3.120 is inapplica-

ble here because it prohibits court employees from initiating

contact with jurors whereas, in this case, jurors initiated the

contact with court personnel regarding their security con-

cerns, and neither court staff nor the trial judge responded

to or communicated with the jurors directly regarding their

expressed concerns. The state argues that, accordingly, no

improper ex parte contacts occurred. Rather, the contacts

were in the nature of “housekeeping” or “incidental” con-

tacts, unrelated to the substance of the case; in those cir-

cumstances, reversal is not warranted absent harm to a

defendant’s substantive rights.

UTCR 3.120 provides that, subject to certain excep-

tions, “parties, witnesses or court employees must not initi-

ate contact with any juror concerning any case which that

juror was sworn to try.” In this case, it is undisputed that

no party, witness, nor court employee initiated any contact

with any juror. In light of the fact that there was no violation

of UTCR 3.120, we need not address defendant’s contention

that the violation was presumptively prejudicial.

In his ninth assignment, defendant contends that

the trial court abused its discretion in implementing var-

ious additional security measures without first informing

the parties. Defendant acknowledges that he is unaware of

any case law holding that a trial court abuses its discretion

in failing to inform the parties of additional security mea-

sures. Nevertheless, he argues that, because the adoption of

additional security measures has the potential to influence

the jury’s assessment of a defendant’s dangerousness, that

potential, in turn, could cause the jury improperly to infer a

greater likelihood of guilt. Accordingly, defendant argues, the

trial court’s decision—although concededly discretionary—

should be subject to “close scrutiny.”

The state contends that the trial court did not abuse

its discretion in adopting the additional security measures

or in failing to tell the parties, in advance, of its decision to

do so. According to the state, the measures themselves were

not “extraordinary” or of a type that is “inherently prejudi-

cial,” such as the use of shackles visible to a jury. Moreover,

the state argues, the record supports the implementation of

648 State v. Washington

the additional security measures. In that regard, the state

observes that there is little likelihood that the jury drew

any adverse inferences from the additional security as to

defendant, given that what prompted the additional security

was the jury’s concern about others in the courtroom, not

defendant. Finally, the state notes that defendant declined

the trial court’s offer to instruct the jury not to consider the

measures.

Defendant’s arguments concerning the trial court’s

decision to implement additional security measures with-

out first informing the parties implicates two distinct trial

court decisions. First, there is the court’s decision to imple-

ment the additional security measures. Second, there is

the court’s failure to advise the parties of that decision in

advance. Those two decisions implicate distinct concerns,

and so we address them separately.

We begin with the court’s decision to implement

additional security measures. As we have noted, defendant

argues that the additional security measures threatened

his right to an impartial jury because such additional mea-

sures suggested that defendant was especially dangerous.

Defendant acknowledges that the trial court’s decision in

that regard was a matter of discretion. Nevertheless, he

argues that, under the circumstances of this case, the trial

court abused that discretion.

Assuming for the sake of argument that the adop-

tion of additional security measures suggests to the jury that

it was defendant—as opposed to others in the courtroom—

who was dangerous, defendant’s argument appears to

assume that all security measures are equally prejudicial.

We are not persuaded that the assumption is justified.

Instructive in that regard is the United States

Supreme Court’s decision in Holbrook v. Flynn, 475 US 560,

106 S Ct 1340, 89 L Ed 2d 525 (1986). At issue in that case

was whether a criminal defendant was denied his consti-

tutional right to a fair trial when, at the defendant’s trial

with five codefendants, the trial court decided to supplement

the ordinary courtroom security detail with four additional

uniformed state troopers sitting in the first row of the spec-

tators’ section. The Court began its analysis by noting that

Cite as 355 Or 612 (2014) 649

central to the right of a fair trial guaranteed by the Sixth

and Fourteenth Amendments is the principle that a per-

son accused of a crime “is entitled to have his [or her] guilt

determined solely on the basis of the evidence introduced at

trial, and not on grounds of official suspicion, indictment,

continued custody, or other circumstances not adduced as

proof at trial.” Id. at 567 (citation omitted). “This does not

mean,” the court then qualified, “that every practice tending

to single out the accused from everyone else in the courtroom

must be struck down.” Id. Only when a security measure is

“inherently prejudicial” is “close scrutiny” required. Id. at

568. Even then, the court observed, such inherently preju-

dicial measures may be justified by the circumstances of the

particular case. Id. But, in the absence of such inherently

prejudicial security measures as visible shackles and gags,

it is the defendant who bears the burden of proving that the

security measures caused actual prejudice. Id. at 572.

In State v. Cavan, 337 Or 433, 98 P3d 381 (2004),

this court addressed the right to an impartial jury under

Article I, section 11, of the state constitution in similar fash-

ion. At issue in that case was the constitutionality of con-

ducting the defendant’s criminal trial in the Snake River

Correctional Institute. Specifically, the defendant argued

that conducting his trial in prison violated his rights to an

impartial jury under Article I, section 11, and his rights to

due process under the Fourteenth Amendment.

The Court of Appeals held that the defendant did

not state a cognizable claim under Article I, section 11. State

v. Cavan, 185 Or App 367, 372-73, 59 P3d 553 (2002). As for

the due process claim, the court, citing Holbrook, concluded

that the defendant’s federal constitutional rights were impli-

cated, because conducting a trial in a prison was “inherently

prejudicial.” Id. at 373-75. Nevertheless, the court concluded

that the trial court’s security concerns justified the practice

as a proper exercise of trial court discretion. Id. at 377.

This court reversed, concluding that conducting the

defendant’s trial in prison violated his rights under Article I,

section 11. Cavan, 337 Or at 449. Although the court based

its decision solely on the state constitution, it quoted exten-

sively from the Court of Appeals’ due process analysis under

650 State v. Washington

Holbrook and expressly concluded that conducting a crim-

inal trial in a prison is “inherently prejudicial.” Id. at 447.

That inherent prejudice is so great, the court ultimately con-

cluded, that the Court of Appeals erred in concluding that

the trial court’s decision did not amount to an abuse of dis-

cretion. See id. at 449.

Following Holbrook and Cavan, then, the first issue

is whether the security measures in question were “inher-

ently prejudicial,” a question of law. Defendant in this case

does not argue that the additional security measures qual-

ified as inherently prejudicial, and we are aware of noth-

ing in the record to suggest that they did. Accordingly, the

“close scrutiny” for which defendant contends does not apply.

Rather, defendant bears the burden of establishing that the

trial court abused its discretion in adopting the security

measures that it did. In that regard, we note that the court

did conduct an evidentiary hearing concerning the need for

those additional security measures and gave defendant the

opportunity to contest the adequacy of the record to sup-

port the trial court’s decision. Cf. United States v. Theriault,

531 F2d 281, 285 (5th Cir), cert den, 429 US 898 (1976)

(“Counsel, or the defendant himself in appropriate cases,

should be given an opportunity both to respond to the rea-

sons presented and to persuade the judge that such mea-

sures are unnecessary.”). Moreover, the trial court offered

to instruct the jury not to draw any adverse inferences from

the additional security measures. But defendant declined

the court’s offer. And, on appeal, defendant does not contest

the adequacy of the record to support the court’s decision to

implement the additional security measures. Under the cir-

cumstances, we find no abuse of discretion in the trial court’s

decision to implement those additional security measures.

We turn to the court’s failure to inform the par-

ties of its decision to implement those measures in advance.

Defendant argues that he should have been given notice of

the court’s decision before it implemented additional secu-

rity measures. In support, defendant cites federal circuit

court decisions in which the courts held that courts should

give criminal defendants the opportunity to contest the rea-

sons for additional security. See, e.g., United States v. Brazel,

Cite as 355 Or 612 (2014) 651

102 F3d 1120, 1158 (11th Cir), cert den, 522 US 822 (1997)

(“[When a] district court implements unusual visible secu-

rity measures, it is required to state reasons for doing so

on the record and give counsel an opportunity to respond.”

(Citing Theriault, 531 F2d 281)).

We need not address whether defendant is correct

that the trial court erred in failing to give such advance

notice, however. Even assuming that the trial court erred,

defendant has failed to explain how he was harmed by that

error. As we have noted, defendant argued to the trial court

that, had the court provided advance notice, “at least the

parties would have had an opportunity to tailor a case dif-

ferently, maybe address certain fears that even the jurors

would have, through questioning.” Counsel, however, did not

otherwise elaborate on what he would have done differently

had the court informed the parties of the jurors’ concerns

earlier—what additional witnesses might have been called,

what different questions might have been asked, what dif-

ferent testimony might have been elicited, or what different

arguments might have been advanced. Indeed, as we have

noted, on appeal, defendant has not contended that the trial

court’s decision to implement the additional security mea-

sures lacks support in the record. Under the circumstances,

we cannot say that any error that the trial court committed

in failing to provide notice of the additional security mea-

sures requires reversal.

That leaves defendant’s tenth assignment, in which

he contends that the trial court erred in denying him the

opportunity to question the jurors about the possible effects

of the security measures. The state argues that defendant’s

request to question jurors runs counter to the state’s strong

policy of protecting jury verdicts from attack. Moreover, the

state contends, examining the jurors about their “thought

processes” is an impermissible subject of inquiry. Defendant

relies on a dissenting opinion in the Court of Appeals case,

Koennecke v. State of Oregon, 122 Or App 100, 857 P2d 148,

rev den, 318 Or 26 (1993), in arguing that he should have

been given the opportunity to question jurors.

Once again, the trial court’s decision is reviewed

for an abuse of discretion. See State v. Moore, 324 Or 396,

652 State v. Washington

425-26, 927 P2d 1073 (1996) (denial of motion for evidentiary

hearing to determine whether there was juror misconduct

reviewed for abuse of discretion). The state is correct that

the courts of this state “strongly favor protecting jury ver-

dicts from attack on the basis of statements made during

jury deliberations.” Ertsgaard v. Beard, 310 Or 486, 497, 800

P2d 759 (1990). Strictly speaking, this case does not involve

a request to inquire into a jury verdict; defendant made his

request to question jurors immediately before the jury began

deliberations. Still, the general policy in favor of protecting

the jury deliberation process counsels against questioning

jurors, at least in the absence of some sort of showing that

there is reason to believe that the process has been compro-

mised. Even the dissent in Koennecke argued for permitting

questioning of a jury in response to evidence of actual juror

misconduct. 122 Or App at 106 (DeMuniz, J., dissenting). In

this case, defendant asked for permission to question jurors

about the mere possibility that one or more of them might

have been in some way influenced by the presence of addi-

tional security in the court room. Under the circumstances,

we find no abuse of discretion in the trial court’s denial of

that request.

E.  Jury Instruction on Mercy (Assignment 11)

In his eleventh assignment of error, defendant argues

that the trial court erred in declining to instruct the jury in

the penalty phase of his trial that each juror

“has the individual authority to extend [to defendant]

mercy for any reason whatsoever.

“The law recognizes and authorizes that any individual

juror may base a decision to impose a sentence less than

death on mercy alone.”

Defendant argues that the trial court’s instructions to the jury

effectively informed them that their decision whether to sen-

tence defendant to death must be based only on evidence pre-

sented, whereas, according to defendant, the law—including

decisions of the United States Supreme Court and various

state appellate courts, Oregon’s own “open-ended” capital

sentencing scheme, and, in light of the purported role of

mercy in human culture, the Sixth, Eighth, and Fourteenth

Cite as 355 Or 612 (2014) 653

Amendments to the United States Constitution—permits

the application of mercy without reference to such evidence.

Defendant further argues that mercy is a form of moral rea-

soning and thus is distinct from sympathy or forgiveness,

which he acknowledges to be improper bases for a verdict.

Defendant argues that, because no other instruction given

by the trial court incorporated the identified principles, the

trial court erred in failing to so instruct the jury.

The state first responds that defendant failed to

raise below most of his arguments in support of the giv-

ing of an instruction on mercy, including his constitutional

arguments, and that those arguments therefore are not

preserved. The state also argues that defendant’s proposed

instruction was not a correct statement of the law. According

to the state, mercy—like sympathy—is a form of emotion

and thus has no place in jury deliberations in either a guilt-

phase or a penalty-phase proceeding. The state also argues

that, to the extent that defendant’s requested instruction

correctly stated the law, it was redundant to other instruc-

tions given by the trial court, which, the state asserts, cor-

rectly and fully advised the jury of its role in determining

defendant’s sentence.

A party is generally entitled to a jury instruction

based on its theory of the case if the instruction is war-

ranted by the particular facts and correctly states the law.

State v. McBride, 287 Or 315, 319, 599 P2d 449 (1979). The

trial court does not err, however, in declining to deliver an

instruction that is not legally correct. Williams v. Philip

Morris Inc., 344 Or 45, 56, 176 P3d 1255 (2008), cert dis-

missed as improvidently allowed, 556 US 178 (2009).

Our analysis of the parties’ arguments in this case

is controlled by two prior cases. First, in State v. Moen, 309

Or 45, 786 P2d 111 (1990), the trial court instructed the jury

not to consider sympathy in determining whether to impose

the death penalty. On appeal, the defendant argued that

the trial court erred, arguing that the court should have

instructed the jury that it was entitled to take sympathy

into account in rendering its judgment. This court rejected

the argument, explaining that “general sympathy, or any

emotionalism, has no place in a capital sentencing decision,

654 State v. Washington

just as it has no place in the jury’s deliberations during

the guilt phase.” Id. at 92. The role of the jury, the court

explained, is “to reach a reasoned decision based solely on

the evidence before them.” Id. at 93 (emphasis in original).

Second, in State v. Moore, 324 Or 396, 927 P2d 1073

(1996), this court addressed the propriety of delivering two

different jury instructions that pertained to the subjects of

sympathy and mercy. The first instruction informed the jury

that “a decision that death is not appropriate may be made

on the basis of sympathy for the [d]efendant if that sympa-

thy is based on mitigating evidence.” Id. at 427 (emphasis in

original). The court held that the instruction was proper,

because it informed the jury that its decision was required

to be based on mitigating evidence. Id.

The second instruction was one that the trial court

declined to deliver. That instruction would have informed

the jury that it “may be influenced by feelings of sympa-

thy or mercy toward defendant, even if those feelings were

not based upon any mitigating evidence.” Id. (emphasis in

original). The court held that the trial court did not err in

failing to deliver that instruction. Citing Moen, the court

reiterated that considerations of sympathy have no place in

jury’s penalty determination in a capital case. 324 Or at 428.

Rather, the court explained, “any instruction that appeals

to the jurors’ sympathies also must instruct the jurors that

such sympathy must be based upon the mitigating evidence

before them.” Id.

Defendant argues that Moen and Moore are distin-

guishable because they involve instructions regarding sym-

pathy, not mercy, which defendant insists is different. We

need not address whether, in the abstract, there is a mean-

ingful distinction between an instruction involving “sympa-

thy” and one involving “mercy.” That is because, in assert-

ing a distinction between the two, defendant has missed the

significance of this court’s prior decisions. Both Moen and

Moore turned not on the fact that the requested instructions

involved appeals to sympathy, but on the fact that those

requested instructions failed to inform the jury that their

decisions must be based on the evidence before them. Moore,

324 Or at 428; Moen, 309 Or at 93.

Cite as 355 Or 612 (2014) 655

In this case, defendant’s requested instruction would

have instructed the jury that it could base its decision on

mercy “alone” and “for any reason whatsoever,” without

respect to the evidence. That instruction cannot be recon-

ciled with Moore and Moen.

The result is the same under the federal constitu-

tion. Controlling in that regard is California v. Brown, 479

US 538, 107 S Ct 837, 93 L Ed 2d 934 (1987). In that case,

the Court addressed whether an instruction that jurors

must not be swayed by “mere *  * sympathy” in the pen-

*

alty phase of a capital case violated the defendant’s rights

under the Eighth and Fourteenth Amendments. Holding

that it did not, the Court emphasized that the key was not

the meaning of the word “sympathy,” but the fact that the

instruction properly cautioned the jury to base its decision

only on the evidence before it. Id. at 541. In the Court’s view,

the instruction properly “limit[ed] the jury’s sentencing con-

siderations to record evidence” and, in so doing, “ensure[d]

the availability of meaningful judicial review” of the jury’s

decision. Id. at 543.

We conclude that the trial court did not err in fail-

ing to deliver defendant’s requested instruction.

F.  Victim Impact Evidence (Assignments 13-14)

In his thirteenth assignment of error, defendant

argues that the trial court erred by admitting, during the

guilt phase of his trial, victim impact evidence in the form

of testimony by a witness—the victim’s uncle. In his four-

teenth assignment of error, defendant argues that the trial

court erred in denying his motion for a mistrial based on

the admission of that evidence. Defendant acknowledges

that ORS 163.150(1)(a) provides for admission of such evi-

dence during the penalty phase following a defendant’s con-

viction of aggravated murder and that, moreover, the United

States Supreme Court has held that the introduction of such

evidence during the penalty phase of a capital murder trial

does not infringe on a defendant’s constitutional rights. He

argues, however, that, in the guilt phase of a trial, such evi-

dence is irrelevant under Oregon Evidence Code (OEC) 401

and is unduly prejudicial under OEC 403. He further argues

656 State v. Washington

that the trial court’s error in admitting the evidence in the

guilt phase of his trial was not harmless; he notes that, at

the conclusion of the challenged testimony, at least one juror

was crying and other jurors were “visibly shaken,” and the

state may have rekindled those emotions by referring to the

testimony in its guilt-phase closing argument.

The state first responds that, at trial, defendant

insufficiently identified the specific portions of the victim’s

uncle’s testimony that he asserted to be inadmissible victim

impact evidence and that he therefore cannot now challenge

the admission of those portions. We disagree. The record

shows that, in addition to requesting and obtaining a con-

tinuing objection, defendant objected to particular portions

of the witness’s testimony.

The state also asserts that the challenged evidence

was not victim impact evidence but was mere “victim back-

ground” or “family background” evidence that provided con-

text to the jury and that in effect “humanized” the proceed-

ing, and that the evidence therefore both met the “very low”

standard for relevance under OEC 401 and was not unduly

prejudicial under OEC 403. The state further asserts that,

to the extent that defendant is challenging the uncle’s tes-

timony as a whole by challenging the trial court’s denial of

his motion for a mistrial, the trial court did not abuse its

discretion in denying that motion. Finally, the state argues

that, in any event, admission of the evidence was harmless

because the state provided similar information in its open-

ing statement, because other witnesses also testified with-

out objection about the victim, and because the trial court

instructed the jury not to base its guilt-phase verdict on

sympathy for any of the parties involved.

The testimony of the witness—again, the victim’s

uncle—included information about the witness’s relation-

ship to the victim; about the victim’s home country, Sierra

Leone, and his extended family there; and about the circum-

stances of the victim’s immigration to the United States, his

residency status in this country, and his residential, edu-

cational, and employment history in Oregon. The witness

also testified about the frequency and nature of interactions

Cite as 355 Or 612 (2014) 657

between himself and the victim in the time leading up to the

murder, such as the witness’s brief statement that the vic-

tim came to his house and helped him with chores. The wit-

ness testified that, to his knowledge, the victim did not own

any firearms. He testified that he had met two of the victim’s

women friends but had not met Stafford. He also testified

that, after July 4, 2004—the date on which someone broke

into Stafford’s apartment—the victim was “scared, really

scared.”

The witness also described the circumstances sur-

rounding his learning of the victim’s death. At various points

during his testimony, the witness also testified about him-

self, including his age, when he came to the United States,

and his educational and employment background. At sev-

eral points during his testimony, he was prevented by the

prosecutor or by the trial court’s rulings on defense counsel’s

objections from giving details about the political situation

in Sierra Leone, from making more than a single passing

reference to the victim’s personality and his liking for music

and soccer, and from describing the content of any conver-

sation the witness had with the victim around July 2004

regarding “any concerns or fears” the victim may have had.

ORS 163.150(1)(a) sets out requirements for the

conduct of a “separate sentencing proceeding” following a

defendant’s conviction for aggravated murder and provides

in part that, in the proceeding,

“evidence may be presented as to any matter that the court

deems relevant to sentence including, but not limited to,

victim impact evidence relating to the personal character-

istics of the victim or the impact of the crime on the victim’s

family and any aggravating or mitigating evidence relevant

to the issue in paragraph (b)(D) of this subsection; how-

ever, neither the state nor the defendant shall be allowed

to introduce repetitive evidence that has previously been

offered and received during the trial on the issue of guilt.”

(Emphasis added.) The emphasized portion of ORS

163.150(1)(a) was added to the statute by the 1995 legis-

lature. Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657,

§ 23. This court has not previously considered precisely what

types of evidence constitute victim impact evidence, that is,

658 State v. Washington

evidence regarding “personal characteristics of the victim or

impact of the crime on the victim’s family.”

We need not do so here, however, because, even

assuming that any portion of the witness’s testimony falls

within that category of evidence; even assuming that admis-

sion of the evidence in the guilt phase of defendant’s trial

therefore was erroneous; and even assuming that the trial

court abused its discretion in denying defendant’s motion for

mistrial, any error was harmless. See State v. Davis, 336

Or 19, 32, 77 P3d 1111 (2003) (reviewing court will affirm

verdict despite error if there is little likelihood that the

error affected the verdict). Of approximately 2000 pages of

guilt-phase trial transcript, the witness’s actual testimony

occupied approximately 23 pages. And, in that testimony,

references to anything that arguably may have met the defi-

nition of victim impact evidence were minimal, including

the witness’s single brief statement that the victim was “a

nice person, he’s gentle, he loves music, he loves soccer” and

the fact that, after the witness learned of the victim’s death,

“[i]t’s never been the same.” Cf. State v. Johns, 301 Or 535,

559, 725 P2d 312 (1986) (in trial encompassing testimony of

60 witnesses and 1700 pages of transcript, Supreme Court

deferred to trial court’s exercise of discretion under OEC 403

as to whether particular item of evidence was unduly preju-

dicial). Moreover, similar testimony by other witnesses was

admitted without objection, including testimony by the vic-

tim’s friend, Carter, that, when the victim’s family learned

of the victim’s death, they “emotionally fell apart.” In short,

it is unlikely that admission of the challenged testimony,

even if erroneous, affected the jury’s guilt-phase verdict.

Defendant’s thirteenth and fourteenth assignments of error

do not afford him the requested relief.

G.  Prosecutor’s Penalty-Phase Opening Statement (Assign-

ment 15)

In his fifteenth assignment of error, defendant

argues that the trial court erred in denying his motion for

a mistrial based on the prosecutor’s statement to the jury

that, when Stafford had “other boyfriends over time, [defen-

dant] was so extremely possessive *  * to the point that he

*

would kill them. This is the mind we’re dealing with.” The

Cite as 355 Or 612 (2014) 659

prosecutor made that statement at the opening of the penalty

phase of defendant’s trial. Defendant immediately moved for

a mistrial, noting that the prosecutor had referred to “boy-

friends” in the plural and had stated that defendant “would

kill them,” and arguing that there was “no evidence of that.”

The trial court denied the motion.

On review, defendant argues that the prosecutor’s

comments were improper and sufficiently prejudicial so

as to create a bias against him in the minds of the jury

and therefore to deny him a fair trial, in violation of his

rights under the Due Process Clause of the Fourteenth

Amendment. Specifically, he argues that the comments

gave rise to an implication of ongoing dangerousness that

was relevant to the jury’s consideration of whether to sen-

tence him to death—specifically, its consideration, under

ORS 163.150(1)(b)(B), of “[w]hether there is a probability

that the defendant would commit criminal acts of violence

that would constitute a continuing threat to society[.]” Nor,

he argues, were the comments mitigated by any curative

instruction. He asks this court to vacate his death sentence

and remand for a new penalty phase.

The state responds that, for several reasons, the

trial court did not abuse its discretion in denying defen-

dant’s motion for a mistrial. The state argues that it was

“obvious” that the prosecutor was using the pronoun “them”

colloquially to refer to a single person, the victim, and that,

to the extent that the reference was ambiguous, none of the

prosecutor’s other statements suggested that defendant had

killed anyone other than the victim. The state also notes

that defendant did not ask for a curative instruction and

that, conversely, the jury was instructed to base its penalty-

phase verdict “only on the evidence” and that “[t]he lawyer’s

statements and arguments are not evidence.”

We review a trial court’s denial of a motion for a

mistrial for abuse of discretion. State v. Davis, 345 Or 551,

582-83, 201 P3d 185 (2008), cert den, 558 US 873 (2009). A

trial court is in the best position to assess the prejudicial

effect, if any, of a prosecutor’s statements to the jury. State v.

Barone, 328 Or 68, 83, 969 P2d 1013 (1998), cert den, 528 US

1135 (2000). We will not find an abuse of discretion in the

660 State v. Washington

trial court’s denial of a defendant’s motion for mistrial on

that basis unless the effect of the prosecutor’s comment was

to deny defendant a fair trial or penalty-phase proceeding.

State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). Generally,

a proper jury instruction is adequate to cure any presumed

prejudice from a prosecutor’s improper statement. Davis,

345 Or at 583. “Ultimately, we must decide whether, under

the circumstances as a whole, [the] defendant was denied

the right to a fair trial, as a matter of law, by the events that

transpired at trial.” Id. (citing State v. Compton, 333 Or 274,

293, 39 P3d 833 (2002), cert den, 537 US 841, reh’g den, 537

US 1068 (2002)).

In this case, the prosecutor’s statement to the jury

at the beginning of the penalty phase amounts to 26 pages

of the penalty-phase trial transcript, which also includes

approximately one thousand pages of witness testimony. In

addition to the challenged remark, the prosecutor informed

the jury that defendant was a “leader” of the Portland “set” of

the Crips gang; that he “engaged in daily illicit gang activi-

ties”; that he derived his income from the illegal distribution

of crack cocaine; that he possessed and used crack cocaine

and marijuana, and possessed and used illegal weapons;

that he exposed his children to criminal activity; that, at

age 15, he assaulted a store clerk; that, at age 16, he par-

ticipated in the gang rape of a 13-year-old girl; that, while

awaiting trial on that rape charge, he assaulted two guards

in a Portland detention facility; that he twice escaped from

a youth correctional facility; that he engaged in domestic

violence against women, including beating and strangling

them, in some instances in violation of restraining orders;

that some of his domestic violence conduct took place in the

presence of children; that he pistol-whipped his daughter’s

boyfriend; that he violated his adult probation; and that he

previously had been charged with assaulting the victim in

the present case. Thus, the prosecutor’s opening summary

to the jury included multiple references to violent or other-

wise unlawful conduct by defendant, thereby vitiating the

effect of the challenged statement.

Again, at the conclusion of the penalty phase, the

trial court instructed the jury that it was to base its answers

to the penalty-phase questions “only on the evidence and

Cite as 355 Or 612 (2014) 661

these instructions” and that “[t]he lawyer’s statements and

arguments are not evidence.” See Smith, 310 Or at 26

(absent an overwhelming probability that they would have

been unable to do so, jurors are presumed to have followed

their instructions).

In light of the prosecutor’s entire opening presenta-

tion to the jury in the penalty phase, as well as the witness

testimony and the trial court’s instructions to the jury in

that phase, we cannot say that the trial court abused its

discretion in denying defendant’s motion for a penalty-phase

mistrial based on the challenged statement. We reject defen-

dant’s fifteenth assignment of error.

H.  Lethal Injection Protocol (Assignment 16)

In his sixteenth assignment of error, defendant con-

tends that the trial court erred in imposing the death pen-

alty over his objection, under the Eighth Amendment to the

United States Constitution, to Oregon’s method of execution.

According to defendant, the statutes and rules governing

Oregon’s three-drug lethal injection protocol do not ade-

quately ensure that persons administering the drugs have

sufficient qualifications and training to properly do so and

do not adequately provide for “backup” drugs and equipment

if the initial administration of drugs is unsuccessful, either

by failing to cause death or by causing the person to expe-

rience such effects as severe pain or suffocation, in viola-

tion of the constitutional prohibition on cruel and unusual

punishment.

The state responds that defendant’s challenge to

the method of his execution is premature because, in capital

cases, exhaustion of a defendant’s appeals and other state

and federal post-conviction remedies typically takes many

years and, by the time defendant has completed or waived

his right to those procedures, Oregon’s execution protocol

may have been revised; moreover, whether or not that is the

case, defendant will have the opportunity at that time to

challenge it. On the merits, the state notes that Oregon’s

three-drug lethal injection protocol is similar to the one

approved by the United States Supreme Court in Baze v.

Rees, 553 US 35, 128 S Ct 1520, 170 L Ed 2d 420 (2008).

In that case, the Court held that any risks of improper

662 State v. Washington

preparation or administration of the first of the three drugs,

the anesthetic sodium thiopental—including calculation

and preparation of an adequate dose of the solution, proper

insertion of intravenous lines for its injection, and adequate

monitoring of the drug’s effects—were not “so substantial or

imminent as to amount to an Eighth Amendment violation.”

Id. at 54-62.

We agree with the state that the specific method

of defendant’s execution—as opposed to the death sentence

itself—is not ripe for consideration by this court, nor will it

be until all direct and collateral review proceedings have

concluded and a death warrant has issued under ORS

137.463. See ORS 138.686 (providing for stay of execution

of death sentence during pursuit of state and federal direct

and collateral review of the defendant’s conviction and sen-

tence). We therefore reject defendant’s sixteenth assignment

of error without further discussion.

I.   Facial Unconstitutionality of ORS 163.150(1)(b)(D) (Assign-

ment 18)

In his eighteenth assignment of error, defendant

argues that the trial court erred in denying his demurrer

to Counts 1 and 2 of the indictment, the aggravated mur-

der counts. The demurrer sought to challenge the facial

constitutionality of Oregon’s capital-sentencing scheme—

specifically, ORS 163.150(1)(b)(D) (the so-called “fourth ques-

tion”), as modified by ORS 163.150(1)(a) and by the jury

instruction required under ORS 163.150(1)(c)(B). According

to defendant, as so modified, ORS 163.150(1)(b)(D) is uncon-

stitutional on its face under the Eighth and Fourteenth

Amendments because it permits the admission of “any”

aggravating evidence, including evidence that is outside

the kinds of victim impact evidence approved by the United

States Supreme Court in Payne v. Tennessee, 501 US 808, 111

S Ct 2597, 115 L Ed 2d 720 (1991), and that is not relevant to

any corresponding factual issue on which the state has the

burden of proof; and because it permits the penalty-phase

jury to disregard or fail to give full effect to mitigating evi-

dence. Defendant also argues that ORS 163.150(1)(b)(D) is

facially unconstitutional because it permits the imposition of

a death penalty without the jury having found the relevant

Cite as 355 Or 612 (2014) 663

facts beyond a reasonable doubt or unanimously. Finally, he

argues that it is facially unconstitutional because its open-

ended nature precludes meaningful appellate review.

The state responds that, in the first instance, it did

not present any victim-impact evidence in this case that

was not otherwise admissible and that defendant fails to

identify any aggravating evidence that did not relate to the

penalty-phase questions. The state also asserts that, in any

event, this court previously has rejected facial challenges

to ORS 163.150 on those grounds. As to defendant’s other

challenges to ORS 163.150(1)(b)(D), the state notes that

the penalty-phase jury must find unanimously and beyond

a reasonable doubt the facts supporting an affirmative

response to each of the first three penalty-phase questions,

ORS 163.150(1)(b)(A)-(C), and that additional facts, if any,

that the jury relies on in answering the question stated in

ORS 163.150(1)(b)(D) are, by comparison, “mere evidence”

that the jury is not required to find at all, and therefore need

not find unanimously or beyond a reasonable doubt. The

state also argues that, in any event, ORS 163.150(1)(b)(D)

is not facially unconstitutional because it is capable of con-

stitutional application. Finally, the state notes that this

court repeatedly has rejected demurrers to Oregon’s capital

sentencing scheme based on the purported unavailability of

meaningful appellate review.

ORS 163.150(1)(b)(D) provides that the trial court

submit to the penalty-phase jury the question “[w]hether the

defendant should receive a death sentence.” ORS 163.150(1)(a)

provides in part for the admission, in the sentencing pro-

ceeding, of evidence

“as to any matter that the court deems relevant to sen-

tence including, but not limited to, victim impact evidence

relating to the personal characteristics of the victim or the

impact of the crime on the victim’s family and any aggravat-

ing and mitigating evidence relevant to the issue in [ORS

163.150(1)(b)(D)][.]”

(Emphasis added.) ORS 163.150(1)(c)(B) provides:

“The court shall instruct the jury to answer the ques-

tion in [ORS 163.150(1)(b)(D)] ‘no’ if, after considering any

aggravating and any mitigating evidence concerning any

664 State v. Washington

aspect of the defendant’s character or background, or any

circumstances of the offense and any victim impact evi-

dence as described in [paragraph (a) of this subsection], one

or more of the jurors believe that the defendant should not

receive a death sentence.”

(Emphasis added.) The emphasized portion of ORS

163.150(1)(a) was added to the statute by the 1995 legis-

lature. Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657,

§ 23. The emphasized portions of ORS 163.150(1)(c)(B) were

enacted by the 1997 legislature. Or Laws 1997, ch 784, § 1.

We previously have determined that ORS 163.150 is

not facially unconstitutional by reason of the fact that ORS

163.150(1)(b)(D) does not expressly require jury unanimity

or proof beyond a reasonable doubt. See State v. Brumwell,

350 Or 93, 111-12, 249 P3d 965 (2011), cert den, 132 S Ct

1028 (2012) (even assuming that the Sixth Amendment

requires jury unanimity on penalty-phase aggravating evi-

dence under ORS 163.150(1)(b)(D) as qualified by ORS

163.150(1)(c)(B), the latter is capable of constitutional appli-

cation because it does not preclude the trial court from also

instructing the jury in that regard to the extent that such

an instruction is constitutionally required; accordingly, the

statute is not facially unconstitutional); State v. Fanus, 336

Or 63, 70-74, 79 P3d 847 (2003), cert den, 541 US 1075 (2004)

(ORS 163.150(1)(b)(D) frames a discretionary inquiry for

the jury and is not subject to any burden of proof). As to

whether ORS 163.150(1)(b)(D) precludes meaningful appel-

late review, we rejected that argument in Moore. 324 Or at

429-34 (where ORS 163.150(1)(b)(D) frames a discretionary

determination for the jury that is not subject to a burden

of proof but that nevertheless must be based on evidence

presented at trial, the reviewing court has the function of

reviewing the jury’s decision to determine whether, in view

of the evidence, a rational juror could have concluded that

the defendant should be sentenced to death).

We turn to defendant’s assertions that ORS

163.150(1)(b)(D) renders Oregon’s death penalty scheme

facially unconstitutional by reason of permitting the admis-

sion of overly broad classes of aggravating and victim impact

Cite as 355 Or 612 (2014) 665

evidence. This court has not expressly considered those argu-

ments since the enactments of the above-quoted 1995 and 1997

amendments to ORS 163.150(1)(a) and ORS 163.150(1)(c).

Again, defendant contends that ORS 163.150(1)(b)(D) and

its related statutes are facially unconstitutional because

they permit the admission of “any” aggravating evidence,

including evidence that is outside the kinds of victim impact

evidence approved by the United States Supreme Court in

Payne and that is not relevant to any corresponding fac-

tual issue on which the state has the burden of proof; and

because they permit the penalty-phase jury to disregard or

fail to give full effect to mitigating evidence in violation of

the Eighth and Fourteenth Amendments.

We disagree. As to aggravating evidence, again, ORS

163.150(1)(a) provides in part that, in the penalty-phase pro-

ceeding,

“evidence may be presented as to any matter that the court

deems relevant to sentencing, including, but not limited to,

victim impact evidence relating to the personal characteris-

tics of the victim or the impact of the crime on the victim’s

family and any aggravating or mitigating evidence relevant

to the issue in [ORS 163.150(1(b)(D)].”

(Emphasis added.) Consistently with the emphasized por-

tions of that provision, and notwithstanding the legislature’s

use of the adjective “any,” aggravating evidence presented

to the penalty-phase jury must be “relevant to sentencing.”

And, notwithstanding the fact that admissible evidence is

“not limited to” the expressly stated types of evidence,

the provision nevertheless is capable of being applied in a

manner that is consistent with the strictures of the United

States Supreme Court as set out in Payne. See, 501 US at 825

(although the Eighth Amendment does not prohibit admis-

sion of victim impact evidence, the Due Process Clause pro-

tects against admission of victim impact evidence that is “so

unduly prejudicial that it renders the trial fundamentally

unfair”). Defendant’s facial constitutional challenge to ORS

163.150(1)(b)(D) based on the admission of aggravating evi-

dence is not well taken.

Similarly, we reject defendant’s argument that ORS

163.150(1)(b)(D) is facially unconstitutional in regard to the

666 State v. Washington

admission, and the jury’s consideration, of mitigating evi-

dence, by permitting the jury to disregard such evidence

altogether or, at a minimum, by failing to guide its discre-

tion or to provide it with a “vehicle” for giving such evidence

its “full effect.” Again, ORS 163.150(1)(c)(A) provides:

“The court shall instruct the jury to consider, in deter-

mining the issues in [ORS 163.150(1)(b)], any mitigating

circumstances offered in evidence, including but not limited

to the defendant’s age, the extent and severity of the defen-

dant’s prior criminal conduct and the extent of the mental

and emotional pressure under which the defendant was act-

ing at the time the offense was committed.”

(Emphases added.) Also, as previously described, ORS

163.150(1)(c)(B) in part directs the trial court to instruct

the jury that, in answering the question set out in ORS

163.150(1)(b)(D), it

“consider[  any aggravating evidence and any mitigating

]

evidence concerning any aspect of the defendant’s character

or background * * *.”

(Emphases added.) Thus, both of the quoted provisions

expressly require the trial court to instruct the jury to “con-

sider” mitigating evidence, and the required instructions

provide at least some guidance to the jury regarding the

nature of the mitigating evidence that it is to consider—in

the former case, by listing various specific types of miti-

gating evidence that the jury may consider and the latter

by generally characterizing such evidence as relating to a

defendant’s “character or background.” Presuming, as we

must, that a jury follows a trial court’s instructions, those

features have the effect of both directing the jury to consider

mitigating evidence and guiding it in doing so. Accordingly,

ORS 163.150 is not facially unconstitutional by reason of

permitting a jury to ignore or improperly consider mitigat-

ing evidence.

For all of the above reasons, we reject defendant’s

eighteenth assignment of error.

J.  Remaining Assignments of Error

Defendant’s remaining assignments of error we reject

without discussion.

Cite as 355 Or 612 (2014) 667

CONCLUSION

The judgment of conviction and sentence of death

are affirmed.